Citation Nr: 0611628
Decision Date: 04/21/06 Archive Date: 04/26/06
DOCKET NO. 03-17 058 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to a disability rating greater than 40 percent
for diabetes mellitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
Veteran and his spouse
ATTORNEY FOR THE BOARD
Anthony M. Flamini, Associate Counsel
INTRODUCTION
The veteran had active service from September 1948 to June
1957 and from August 1957 to May 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a November 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.
The veteran and his spouse testified before the undersigned
at a Travel Board hearing in November 2004. A transcript of
that hearing is associated with the claims folder.
FINDING OF FACT
The veteran's service-connected diabetes mellitus requires
insulin and restricts the veteran's diet and activities;
there are no episodes of ketoacidosis or hypoglycemic
reactions requiring hospitalization or the need for twice a
month visits to a diabetic care provider.
CONCLUSION OF LAW
The criteria for a disability rating greater than 40 percent
for diabetes mellitus have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.21, 4.119,
Diagnostic Code 7913 (2005).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities, which is
based on the average impairment of earning capacity.
Individual disabilities are assigned separate diagnostic
codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1
(2005). Where an increase in an existing disability rating
based on established entitlement to compensation is at issue,
the present level of disability is the primary concern.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If two
evaluations are potentially applicable, the higher evaluation
will be assigned if the disability picture more nearly
approximates the criteria required for that rating;
otherwise, the lower rating will be assigned. 38 C.F.R. §
4.7. Reasonable doubt as to the degree of disability will be
resolved in the veteran's favor. 38 C.F.R. § 4.3.
Pertinent regulations do not require that all cases show all
findings specified by the Rating Schedule, but that findings
sufficiently characteristic to identify the disease and the
resulting disability and above all, coordination of rating
with impairment of function will be expected in all cases.
38 C.F.R. § 4.21. Therefore, the Board has considered the
potential application of various other provisions of the
regulations governing VA benefits, whether or not they were
raised by the veteran, as well as the entire history of the
veteran's disability in reaching its decision. Schafrath v.
Derwinski, 1 Vet. App. 589, 595 (1991).
The veteran's diabetes mellitus is currently evaluated as 40
percent disabling under Diagnostic Code (Code) 7913. 38
C.F.R. § 4.119. Under Code 7913, the next higher evaluation,
60 percent, is assigned when the disability requires insulin,
restricted diet, and regulation of activities with episodes
of ketoacidosis or hypoglycemic reactions requiring one or
two hospitalizations per year or twice a month visits to a
diabetic care provider, plus complications that would not be
compensable if separately evaluated. Note 1 to Code 7913
states that compensable complications of diabetes are to be
evaluated separately unless they are part of the criteria
used to support a 100 percent evaluation. Noncompensable
complications are considered part of the diabetic process
under Code 7913.
The Board notes that, in a November 2005 rating decision,
following a Board remand in December 2004, the RO established
service connection and separate disability evaluations, all
as due to the diabetes mellitus, for the following
conditions: small artery occlusive disease, right foot; small
artery occlusive disease, left foot; diabetic peripheral
neuropathy, right lower extremity; diabetic peripheral
neuropathy, left lower extremity; and erectile dysfunction.
This rating action was not appealed by the veteran.
Therefore, symptomatology associated with these disabilities
may not be utilized to rate the underlying diabetes mellitus.
38 C.F.R. § 4.119.
In this case, the veteran reports insulin use, restricted
diet, restriction of activities, and visits to the VA for
treatment every six months. Upon review of the evidence, the
Board finds that the overall disability picture from diabetes
mellitus does not more closely approximate the criteria for a
rating greater than 40 percent. 38 C.F.R. § 4.7.
Specifically, there is no evidence in any of the VA treatment
records or examinations of episodes of ketoacidosis or
hypoglycemic reactions requiring hospitalization. VA
treatment records dated from December 1998 to October 2005
reflect only intermittent visits to the veteran's diabetic
care provider, not in the frequency of two visits per month.
Considering the evidence in light of the rating criteria, the
Board cannot conclude that the overall disability picture
from diabetes mellitus more closely approximates the criteria
for a 60 percent rating under Code 7913. 38 C.F.R. § 4.7.
Accordingly, the Board finds that the preponderance of the
evidence is against a disability rating greater than 40
percent for diabetes mellitus. 38 C.F.R. § 4.3.
Furthermore, the Board finds no reason to refer the claim to
the Compensation and Pension Service for consideration of an
extra-schedular evaluation under 38 C.F.R.
§ 3.321(b)(1). That is, there is no evidence of exceptional
or unusual circumstances, such as frequent hospitalization or
marked interference with employment, to suggest that the
veteran is not adequately compensated for his disability by
the regular rating schedule. VAOPGCPREC 6-96; see 38 C.F.R.
§ 4.1 (disability ratings are based on the average impairment
of earning capacity). Therefore, the Board finds that the
preponderance of the evidence is against service connection
for a right ankle disorder. 38 C.F.R. § 4.3.
Finally, the Board notes that the veteran seeks a 100 percent
rating for his diabetes. As of the November 2005 rating
decision, the veteran's combined evaluation for his diabetes
mellitus and associated complications is 100 percent
effective from the date of his October 2002 claim.
The Duty to Notify and the Duty to Assist
Review of the claims folder reveals compliance with the duty
to notify. That is, by way of letters dated October 2002 and
February 2005, as well as by the June 2003 statement of the
case and July 2003, September 2003, March 2004, and December
2005 supplemental statements of the case, the RO advised the
veteran of the evidence needed to substantiate his claim and
explained what evidence VA was obligated to obtain or to
assist the veteran in obtaining and what information or
evidence the veteran was responsible for providing. In
addition, the June 2003 statement of the case and December
2005 supplemental statement of the case include the text of
the regulation that implements the statutory notice and
assistance provisions. Finally, the Board notes that initial
notice was provided in October 2002 prior to the November
2002 rating decision on appeal, and the February 2005 letter
specifically asks the veteran to provide any evidence in his
possession pertinent to the appeal. Pelegrini v. Principi,
18 Vet. App. 112, 120-21 (2004). Accordingly, the Board
finds that the RO has provided all required notice. 38
U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); see Quartuccio
v. Principi, 16 Vet. App. 183 (2002).
During the pendency of this appeal, on March 3, 2006, the
United States Court of Appeals for Veterans Claims (Court)
issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the notice requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b) apply to all five elements of a
service connection claim. Those five elements include: 1)
veteran status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. The Court held that upon receipt of an
application for a service-connection claim, 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b) require VA to review the
information and the evidence presented with the claim and to
provide the claimant with notice of what information and
evidence not previously provided, if any, will assist in
substantiating or is necessary to substantiate the elements
of the claim as reasonably contemplated by the application.
Dingess/Hartman, slip op. at 14. Additionally, this notice
must include notice that a disability rating and an effective
date for the award of benefits will be assigned if service
connection is awarded. Id.
In the present appeal, by letter dated March 2006, the RO
provided information about the evidence the veteran needed to
evaluate his disabilities and determine the beginning date of
any payment to which he may be entitled.
With respect to the duty to assist, the RO has obtained the
veteran's service medical records, VA examinations, and VA
treatment reports dated from December 1998 to October 2005.
In addition, the veteran provided lay evidence in the form of
a statement from his spouse as well as testimony at the
November 2004 Travel Board hearing. Finally, the Board notes
that the veteran has not identified any private treatment and
it appears that the veteran has received what he requested at
the hearing held before the undersigned in November 2004.
Therefore, the Board is satisfied that the duty to assist has
been met. 38 U.S.C.A. § 5103A.
ORDER
A disability rating greater than 40 percent for diabetes
mellitus is denied.
____________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs